Obama will keep people imprisoned after being found innocent

[Dominus Atheos]

Glenn Greenwald

The Obama justice system

Spencer Ackerman yesterday attended a Senate hearing at which the DOD's General Counsel, Jeh Johnson, testified. As Ackerman highlighted, Johnson actually said that even for those detainees to whom the Obama administration deigns to give a real trial in a real court, the President has the power to continue to imprison them indefinitely even if they are acquitted at their trial. About this assertion of "presidential post-acquittal detention power" -- an Orwellian term (and a Kafka-esque concept) that should send shivers down the spine of anyone who cares at all about the most basic liberties -- Ackerman wrote, with some understatement, that it "moved the Obama administration into new territory from a civil liberties perspective." Law professor Jonathan Turley was more blunt: "The Obama Administration continues its retention and expansion of abusive Bush policies - now clearly Obama policies on indefinite detention."

In June, Robert Gibbs was repeatedly asked by ABC News' Jake Tapper whether accused Terrorists who were given a trial and were acquitted would be released as a result of the acquittal, but Gibbs -- amazingly -- refused to make that commitment. But this is the first time an Obama official has affirmatively stated that they have the "post-acquittal detention" power (and, to my knowledge, the Bush administration never claimed the power to detain someone even if they were acquitted).

All of this underscores what has clearly emerged as the core "principle" of Obama justice when it comes to accused Terrorists -- namely, "due process" is pure window dressing with only one goal: to ensure that anyone the President wants to keep imprisoned will remain in prison. They'll create various procedures to prettify the process, but the outcome is always the same -- ongoing detention for as long as the President dictates. This is how I described it when Obama first unveiled his proposal of preventive detention:

If you really think about the argument Obama made yesterday -- when he described the five categories of detainees and the procedures to which each will be subjected -- it becomes manifest just how profound a violation of Western conceptions of justice this is. What Obama is saying is this: we'll give real trials only to those detainees we know in advance we will convict. For those we don't think we can convict in a real court, we'll get convictions in the military commissions I'm creating. For those we can't convict even in my military commissions, we'll just imprison them anyway with no charges ("preventively detain" them).

After yesterday, we have to add an even more extreme prong to this policy: if by chance we miscalculate and deign to give a trial to a detainee who is then acquitted, we'll still just keep them in prison anyway by presidential decree. That added step renders my criticism of Obama's conception of "justice" even more applicable:

Giving trials to people only when you know for sure, in advance, that you'll get convictions is not due process. Those are called "show trials." In a healthy system of justice, the Government gives everyone it wants to imprison a trial and then imprisons only those whom it can convict. The process is constant (trials), and the outcome varies (convictions or acquittals).

Obama is saying the opposite: in his scheme, it is the outcome that is constant (everyone ends up imprisoned), while the process varies and is determined by the Government (trials for some; military commissions for others; indefinite detention for the rest). The Government picks and chooses which process you get in order to ensure that it always wins. A more warped "system of justice" is hard to imagine.

In today's Wall St. Journal, which also reported that "the Obama administration said Tuesday it could continue to imprison non-U.S. citizens indefinitely even if they have been acquitted of terrorism charges," Rep. Jerry Nadler was quoted as saying something quite similar about the Obama approach:

"What bothers me is that they seem to be saying, 'Some people we have good enough evidence against, so we'll give them a fair trial. Some people the evidence is not so good, so we'll give them a less fair trial. We'll give them just enough due process to ensure a conviction because we know they're guilty. That's not a fair trial, that's a show trial," Mr. Nadler said.

Exactly. Show trials are exactly what the Obama administration is planning. In its own twisted way, the Bush approach was actually more honest and transparent: they made no secret of their belief that the President could imprison anyone he wanted without any process at all. That's clearly the Obama view as well, but he's creating an elaborate, multi-layered, and purely discretionary "justice system" that accomplishes exactly the same thing while creating the false appearance that there is due process being accorded. And for those who -- to justify what Obama is doing -- make the not unreasonable point that Bush left Obama with a difficult quandary at Guantanamo, how will that excuse apply when these new detention powers are applied not only to existing Guantanamo detainees but to future (i.e., not-yet-abducted) detainees as well?

Whatever else is true, even talking about imprisoning people based on accusations of which they have been exonerated is a truly grotesque perversion of everything that our justice system and Constitution are supposed to guarantee. That's one of those propositions that ought to be too self-evident to need stating.

* * * * *

Several related points: Spencer also notes that Johnson testified yesterday about the possibility that Guantanamo might remain open beyond January, 2010 -- the date Obama, to much fanfare, established as the deadline for closing that prison. That decision is one of the very few to which Obama defenders can cling in order to claim there are significant differences between his approach to these issues and the Bush/Cheney approach.

Meanwhile, former Guantanamo detainee Binyam Mohamed is engaged in what The Guardian calls "an urgent legal attempt to prevent the US courts from destroying crucial evidence that he says proves he was abused while being held at the detention camp detainee." The photographs -- which show Mohamed after he had been severely beaten and which he claims was posted on the door to his cage "because he had been beaten so badly that it was difficult for the guards to identify him" -- is scheduled to be destroyed by the U.S. Government, an act The Washington Independent's Alexandra Jaffe calls "another black mark on the Obama administration's promised transparency."

UPDATE: The ACLU's Ben Wizner emails to correct one point I made: the Bush administration, like Obama is doing now, did claim the power of post-acquittal detentions. Ben writes:

Glenn - You're right that this is disgraceful, but not that it's new. The Bush gang claimed the same authority in connection with Gitmo military commissions, which is why, paradoxically, the only way to get out of Gitmo if you were charged in a military commission was to plead guilty and strike a deal that included repatriation (as David Hicks did).

This is from an LA Times op-ed I wrote in 4/07:

Last Friday night, after a jury of senior military officers sentenced Hicks to seven years in prison, we all learned the details of that agreement: Hicks will serve a mere nine months -- a sentence more in keeping with a misdemeanor than with a grave terrorist offense.

This stunning turn of events highlights a cruelly ironic feature of detention at Guantanamo. In an ordinary justice system, the accused must be acquitted to be released. In Guantanamo, the accused must plead guilty to be released -- because even if he is acquitted, he remains an "enemy combatant" subject to indefinite detention. Only by striking a deal does a detainee stand a chance of getting out.

So this is (another) one of those cases where Obama is embracing a radical Bush theory of power rather than inventing one of his own.



UPDATE II: The Weekly Standard's Michael Goldfarb, a former McCain aide, is someone who believes that the President possesses what he calls "near dictatorial power" when it comes to national security. He has repeatedly praised Obama for maintaining Bush Terrorism policies. But even Goldfarb is uncomfortable with Obama's assertion of "post-acquittal detention power":

I understand and respect the president's decision to disregard his left-wing critics and embrace the same policies of indefinite detention and denial of due process that made the Bush-Cheney administration so effective in preventing another terror attack. I support those policies because as illegal enemy combatants, terrorists have no right to due process. But, as Glenn Greenwald points out, there is something Orwellian about this administration's attempt to have it both ways -- to get the credit for putting detainees on trial only to disregard the outcome if they don't like the verdict. Obviously the Bush administration would have done the same if they thought for a second that they could get away with it. But even the Bush OLC wouldn't have dared suggest detaining individuals who had been acquitted on all charges.

As Ben Wizner's email in the prior update reflects, it's far from clear that "even the Bush OLC wouldn't have dared suggest detaining individuals who had been acquitted on all charges." Still, if your assertions of executive power and denial of due process to Muslim detainees even make Michael "near dictatorial power" Goldfarb uncomfortable, that's a pretty compelling sign that you're way, way out there.



UPDATE IV: From Alice in Wonderland, Chapter 12:

"Let the jury consider their verdict," the King said, for about the twentieth time that day.

"No, no!" said the Queen. "Sentence first -- verdict afterward."

"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"

"Hold your tongue!" said the Queen, turning purple.

"I won't!" said Alice.

"Off with her head!" the Queen shouted at the top of her voice.

The Queen's pronouncement -- "Sentence first -- verdict afterward" -- is a fine expression of Obama's approach here: these prisoners are decreed to be Dangerous and Guilty and are sentenced to prolonged, indefinite, imprisonment and must not be released; now let's tailor a process for each of them to ensure that this verdict is produced.

So to sum up: The Obama administration is going to let some Gitmo detainees have real trials in real courts that follow established law, and let others have fake trials in military commissions that do not follow the established law, and the just let the rest rot without being charged or tried as so-called "Preventitive Detention". Now they say that even for the ones that they let have trials (real or fake), if they are found innocent they get thrown right back in Gitmo.

[MKSheppard]

HOPE! CHANGE!

Feelin' the hope and change yet, guys?

[rhoenix]

HOPE! CHANGE!

Feelin' the hope and change yet, guys?

Already do. We now have a President who can speak and read his own native language.

[Stark]

Don't feed the trolls. Shep is so fucking stupid he honestly believes everyone detained without trial is a terrorist (and will harp on about the ones that returned to join terrorist groups as if it proves anything about the entire population) so he doesn't even WANT it to change.

It's actually pretty funny when you've got people basically CHEERING that legal abuses are becoming commonplace on both sides of politics.

[Elfdart]

Don't feed the trolls. Shep is so fucking stupid he honestly believes everyone detained without trial is a terrorist (and will harp on about the ones that returned to join terrorist groups as if it proves anything about the entire population) so he doesn't even WANT it to change.

It's actually pretty funny when you've got people basically CHEERING that legal abuses are becoming commonplace on both sides of politics.

Their hero must be Jack Palance in Shane.

[Darth Wong]

HOPE! CHANGE!

Feelin' the hope and change yet, guys?

It would be nice if there were more change, but we all know why it's not happening (fearmongering media, rightist Democrat sub-group willing to vote with Republicans, sheep-like populace). In any case, this is a fucked-up criticism coming from you, because I know you don't want any of this changed.

[Akkleptos]

Okay, so... what can actually be done in the Land of the Free to help this?

Doesn't the Supreme Court have a say in this matter?

How can a Western democracy (especially one as powerful and influential as the US) expect respect from the international community when they allow things like this to go on?

[Axis Kast]

It would be nice if there were more change, but we all know why it's not happening (fearmongering media, rightist Democrat sub-group willing to vote with Republicans, sheep-like populace). In any case, this is a fucked-up criticism coming from you, because I know you don't want any of this changed.

I believe he is, in fact, gloating.

[MKSheppard]

In any case, this is a fucked-up criticism coming from you, because I know you don't want any of this changed.

Criticism? Actually, it's more like gloating over broken promises that every liberal sucker believed during the campaign trail.

Yeah, I know it's assholish; but hey, at least I'm not posting these things with righteous indignation, unlike Dominos Atheos.

[Darth Wong]

In any case, this is a fucked-up criticism coming from you, because I know you don't want any of this changed.

Criticism? Actually, it's more like gloating over broken promises that every liberal sucker believed during the campaign trail.

Yeah, I know it's assholish; but hey, at least I'm not posting these things with righteous indignation, unlike Dominos Atheos.

Actually, I pointed out many times during the campaign that Obama would be considered an arch-conservative here in Canada. It's actually people like you who insisted on falsely characterizing him as an ultra-liberal during the campaign.

[MKSheppard]

Actually, I pointed out many times during the campaign that Obama would be considered an arch-conservative here in Canada.

And look how many democrats suckers ignored you.

It's actually people like you who insisted on falsely characterizing him as an ultra-liberal during the campaign.

*twirls moustache evilly*

He's still a damn liberal commie; witness his cuts in the MIC.

[Stark]

Can Shep get more baseless generalisations in one sentence? That's actually quite remarkable. Turns out lots of 'liberals' aren't as idealistic and were aware Obama would operate within political realities?

EDIT - Wow, do tell us about this red herring MIC, Shep!

[Axis Kast]

Actually, I pointed out many times during the campaign that Obama would be considered an arch-conservative here in Canada. It's actually people like you who insisted on falsely characterizing him as an ultra-liberal during the campaign.

Obama is nonetheless fairly sympathetic to some of the views about social responsibility that garner a lot of respect in Europe and Canada, and are rarely accepted in the United States.

His failure to keep promises seems to have more to do with the limited maneuvering room he has due to the sheer number of wicked problems on his plate - all of which require some level of bargaining, even with the new supermajority - than an about-face and abandonment of the platform on which he was elected.

Certainly, Democrats have reason to suspect less platform disloyalty from Obama than Republicans would have from McCain, whom many voted for while arguing that he'd simply tacked right for the purposes of his campaign.

[Kamakazie Sith]

Ahhh yes the massive campaign to destroy Obama continues. Tell me who really expected Obama to fulfill all his promises and cut through all the legal red tape in over a half a year?

The people who expect this are either his enemies so they can gloat each month that he doesn't accomplish it or the people who really never had a clue on how things in the real world work.

If Obama accomplishes even 25% of his goals by his term end then he'll be a success in my book. Only because he has so many people against him, and that's including his enemies up on capitol hill whom are probably funding these people who write these articles that DA posts.

[Dominus Atheos]

Ahhh yes the massive campaign to destroy Obama continues. Tell me who really expected Obama to fulfill all his promises and cut through all the legal red tape in over a half a year?

The people who expect this are either his enemies so they can gloat each month that he doesn't accomplish it or the people who really never had a clue on how things in the real world work.

If Obama accomplishes even 25% of his goals by his term end then he'll be a success in my book. Only because he has so many people against him, and that's including his enemies up on capitol hill whom are probably funding these people who write these articles that DA posts.

Glenn Greenwald is an secret doubleagent of the Establishment conspiracy? Anyway, I don't think letting people go after they were found innocent in a court of law is a particularly controversial position.

[Dominus Atheos]

Okay, so... what can actually be done in the Land of the Free to help this?

Doesn't the Supreme Court have a say in this matter?

How can a Western democracy (especially one as powerful and influential as the US) expect respect from the international community when they allow things like this to go on?

The supreme court has already ruled that the detainees have the right to heabeas corpus and have to be released after acquittal. If Obama actually goes through with this, he'll be disobeying that ruling, and that's an impeachable offense.

[Solauren]

You know, until this position (keep'em after being cleared) is endorsed as true (or under consideration) by a high ranking member of the Obama Administration, and one with the authority to back it up at that, this is just more smoke being blown to make it look like their is a fire. (i.e Obama, Biden, Clinton, etc)

However, confirm the fire for me, and I'll be critizing like no one's business.

[Dominus Atheos]

You know, until this position (keep'em after being cleared) is endorsed as true (or under consideration) by a high ranking member of the Obama Administration, and one with the authority to back it up at that, this is just more smoke being blown to make it look like their is a fire. (i.e Obama, Biden, Clinton, etc)

However, confirm the fire for me, and I'll be critizing like no one's business.

The General Counsel for the Defense Dept isn't enough? From one of the links in the OP:

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

[JCady]

You know, until this position (keep'em after being cleared) is endorsed as true (or under consideration) by a high ranking member of the Obama Administration, and one with the authority to back it up at that, this is just more smoke being blown to make it look like their is a fire. (i.e Obama, Biden, Clinton, etc)

However, confirm the fire for me, and I'll be critizing like no one's business.

The General Counsel for the Defense Dept isn't enough? From one of the links in the OP:

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

That sounds more like a policy of "release those who are explicitly acquitted, but continue detaining those who are merely found not guilty due to insufficient evidence". Which is a hell of a lot better than Bush's policy of indefinite-and-perpetual detention period.

[Uraniun235]

Actually, I pointed out many times during the campaign that Obama would be considered an arch-conservative here in Canada.

And look how many democrats suckers ignored you.

Any reasonable person who identifies as "liberal" or "progressive" would acknowledge that Obama is the left-most politician that could have been elected to the Presidency in 2008.

[Lord of the Abyss]

Actually, I pointed out many times during the campaign that Obama would be considered an arch-conservative here in Canada.

And look how many democrats suckers ignored you.

Any reasonable person who identifies as "liberal" or "progressive" would acknowledge that Obama is the left-most politician that could have been elected to the Presidency in 2008.

Exactly. I'm a left winger, and I voted for Obama, but at no point did I think he qualified as left wing by my standards. But I wasn't being given a choice between my Ideal Candidate and Obama; but between Obama and McCain. Obama was there, and electable; my Ideal Candidate was not.

And I find it amusing when people like MKSheppard try to "shock" left wingers with the fact that Obama isn't left wing, when we left wingers have been complaining about that literally from day one ( remember that anti-gay preacher he let speak at his inauguration ? ). The idea that Obama is some kind of left wing messiah is a right wing delusion, not a left wing one. The Right has bought into their own propaganda to such an extent that they think the other side has also bought into it.

[Dominus Atheos]

You know, until this position (keep'em after being cleared) is endorsed as true (or under consideration) by a high ranking member of the Obama Administration, and one with the authority to back it up at that, this is just more smoke being blown to make it look like their is a fire. (i.e Obama, Biden, Clinton, etc)

However, confirm the fire for me, and I'll be critizing like no one's business.

The General Counsel for the Defense Dept isn't enough? From one of the links in the OP:

Jeh Johnson, the Defense Department's chief lawyer, told the Senate Armed Services Committee that releasing a detainee who has been tried and found not guilty was a policy decision that officials would make based on their estimate of whether the prisoner posed a future threat.

That sounds more like a policy of "release those who are explicitly acquitted, but continue detaining those who are merely found not guilty due to insufficient evidence". Which is a hell of a lot better than Bush's policy of indefinite-and-perpetual detention period.

Did you read the OP? He's still carrying over that policy.

So to sum up: The Obama administration is going to let some Gitmo detainees have real trials in real courts that follow established law, and let others have fake trials in military commissions that do not follow the established law, and the just let the rest rot without being charged or tried as so-called "Preventitive Detention". Now they say that even for the ones that they let have trials (real or fake), if they are found innocent they get thrown right back in Gitmo.

If we have actual evidence someone is a terrorist they should be given a real trial where the jury will look at the evidence and then lock him away in Supermax, or if we don't have any evidence they are a terrorist we need to release him.

[Kamakazie Sith]

Ahhh yes the massive campaign to destroy Obama continues. Tell me who really expected Obama to fulfill all his promises and cut through all the legal red tape in over a half a year?

The people who expect this are either his enemies so they can gloat each month that he doesn't accomplish it or the people who really never had a clue on how things in the real world work.

If Obama accomplishes even 25% of his goals by his term end then he'll be a success in my book. Only because he has so many people against him, and that's including his enemies up on capitol hill whom are probably funding these people who write these articles that DA posts.

Glenn Greenwald is an secret doubleagent of the Establishment conspiracy? Anyway, I don't think letting people go after they were found innocent in a court of law is a particularly controversial position.

And where did this happen under Obamas' administration? One guy comes in and says that Obama can do that if he wanted to and now you're acting like it's happening.

Names, DA. Give me names of those who were found innocent and put back in Gitmo by Obamas administration. I'll assume innocent means that they simply don't pose a threat to US personnel. Just because there isn't any evidence that they are a terrorist doesn't mean that there isn't evidence that they aren't an insurgent who builds IEDs or attacks US soldiers.

[Dominus Atheos]

Ahhh yes the massive campaign to destroy Obama continues. Tell me who really expected Obama to fulfill all his promises and cut through all the legal red tape in over a half a year?

The people who expect this are either his enemies so they can gloat each month that he doesn't accomplish it or the people who really never had a clue on how things in the real world work.

If Obama accomplishes even 25% of his goals by his term end then he'll be a success in my book. Only because he has so many people against him, and that's including his enemies up on capitol hill whom are probably funding these people who write these articles that DA posts.

Glenn Greenwald is an secret doubleagent of the Establishment conspiracy? Anyway, I don't think letting people go after they were found innocent in a court of law is a particularly controversial position.

And where did this happen under Obamas' administration? One guy comes in and says that Obama can do that if he wanted to and now you're acting like it's happening.

Names, DA. Give me names of those who were found innocent and put back in Gitmo by Obamas administration. I'll assume innocent means that they simply don't pose a threat to US personnel. Just because there isn't any evidence that they are a terrorist doesn't mean that there isn't evidence that they aren't an insurgent who builds IEDs or attacks US soldiers.

They haven't allowed anyone to have a trial yet so you're right, the issue is theoretical. If it helps any, I can state that the list of people who have been tried, found innocent, and thrown back in jail has exactly as many names on it as the list of people who have been tried, found innocent, and released.

(Also when I said terrorist, I was including insurgents and anyone else involved with Al-Qaeda or any other group killing American/Coalition troops.)